On 2 March 2020, the 5-judge bench hearing the Article 370 petitions rejected the request to refer these petitions to a larger bench. It may be recalled that Senior Advocates Dinesh Dwivedi and Sanjay Parikh had argued that the Supreme Court in Sampat Prakash had given its decision without taking into account the law laid down in Prem Nath Kaul - both significant cases on Article 370. Such an oversight, they had submitted, called for a reference to a larger bench since the present bench was of the same strength as Sampath Prakash and Prem Nath Kaul benches and hence ill equipped to resolve any conflict between these decisions.
The Bench, in its 41-page order, held that there was no such oversight or conflict. It primarily gave two reasons for its decision. One, it observed that the circumstances in which these cases were decided were different. Two, the issues involved in them were completely different. Given this, there was no occasion for a conflict, held the Bench.
In making this order, the Bench specifically noted that it was only deciding the preliminary issue of reference and no comment was being made on the substantive arguments raised in the petitions.
Issues for Court’s determination
After briefly tracing the arguments made by the counsels, the Court observed that there were three issues before it:
Circumstances for reference
The Court prefaced its answer to the first issue by stating that “the Court regards the use of precedent as indispensable bedrock upon which the Court renders justice”. It then went on to hold that a reference is made only when “a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well established principle”.
Since the decisions in both Prem Nath Kaul and Sampat Prakash were delivered by benches of same strength (commonly referred to as ‘co-ordinate benches’), the Court made it a point to clarify that the decision of a bench has to be indeed followed by subsequent co-ordinate benches.
The Court then examined the question of what happens if a subsequent bench fails to consider an earlier co-ordinate bench decision. In other words, the Court was identifying the circumstances in which a decision may be termed per incuriam, ie, it is given in ignorance of the previous decisions of benches of equal or larger strength. It held that a judgment may be considered per incuriam only if it has been decided without paying attention to the basic essence/principle (referred to as ‘ratio decidendi’) laid down in a previous judgment.
It would appear that the Court discussed the rule on per incuriam since it is an exception to the doctrine of precedent. As discussed earlier, since precedent forms the bedrock of Court’s adjudicatory process, any deviation from it may require a reference.
After answering first issue, the Court addressed whether Sampat Prakash may be termed per incuriam, ie, decided in ignorance of the decision in Prem Nath Kaul.
Judgments given under different circumstances and there is no conflict
The primary argument raised by Senior Advocates Dwivedi and Parikh to assert a conflict was that Sampat Prakash ignored certain essential observations made in Prem Nath Kaul. Per them, Prem Nath Kaul had made it clear that the Parliamentary and Presidential powers under Article 370 was subject to the final decision of the Jammu and Kashmir Constituent Assembly. Once the Assembly was dissolved, these powers were no longer exercisable.
Despite this, Sampat Prakash approved a Presidential order under Article 370, post the dissolution of the Constituent Assembly. This, the counsels had argued, created an irreconcilable conflict between these two decisions.
Court emphatically rejected the contention that there was any such conflict. It noted that the observations in Prem Nath Kaul should be read in light of the context in which they were made.
Expanding on this context, the Court pointed out that these observations were made after the Constitution of India had come into force but before the formulation of the J&K Constitution. Court added that all decisions taken by the State Government before the formulation of the J&K Constitution had to be placed before the J&K Constituent Assembly and finally approved by it. Thus, the Court held that finality accorded to the Assembly’s decisions in Prem Nath Kaul was limited to the decisions taken prior to the Assembly getting convened.
More importantly, the Court observed that Prem Nath Kaul did not consider what would happen to the powers under Article 370 once the Assembly dissolved. Unlike in Sampat Prakash, this was not in issue at all in Prem Nath Kaul.
Thus, as per the Court, there was a fundamental difference in circumstances and issues in these two cases. Finally, on the question of whether Sampat Prakash was per incuriam, the Court reiterated that there were no contrary observations made in the said judgment to that of Prem Nath Kaul.